The majority approves the Department of Corrections' (DOC) refusal to comply with the directive contained in the mittimus and the trial court's subsequent order. The opinion compounds this error by sanctioning the principle that a trial court's presentence confinement credit order has no meaning, unless approved by the DOC. Maj. op. at 1177-78. Contrary to the majority's holding, the mittimus and order allocate 174 days of presentence confinement to Dixon's attempted aggravated robbery sentence. In light of this fact, I conclude the DOC erroneously ignored the sentence imposed by the trial court. Furthermore, I cannot agree with the majority's holding that the DOC has the statutory authority to alter a defendant's actual sentence by applying only the presentence confinement credit it deems appropriate. Accordingly, I respectfully dissent.
I. Before Dixon completed the conditions of his suspended sentence for attempted possession of a schedule II controlled substance and distribution of marihuana, he was arrested for attempted aggravated robbery. Accordingly, the trial court imposed the original sentence to two six-year concurrent terms of imprisonment on those convictions. Dixon was convicted of attempted aggravated robbery and sentenced to eight years in the DOC. Between his arrest for attempted aggravated robbery and his sentencing, Dixon served 174 days in the DOC. The DOC applied the 174 days of presentence confinement credit to Dixon's attempted possession of a schedule II controlled substance and distribution of marihuana sentences.
As in People v. Ostuni, 58 P.3d 531 (Colo. 2002), the majority ignores the directive of the mittimus and trial court order and, instead, construes Dixon's sentence based on a statutory interpretation of section 18-1.3-405, C.R.S. (2005). The Ostuni majority determined that absent an explicit indication to the contrary from the sentencing court, presentence confinement credit must be allocated to any sentence the defendant was serving while waiting to be sentenced on the instant offense. Id. at 534. Relying on Ostuni, the majority in this case presumes the court did not intend to exceed its authority under section 18-1.3-405, and upholds the DOC's revision of the sentence imposed by the court.
Contrary to the interpretation of the majority, the mittimus unambiguously credits the 174 days served to Dixon's attempted aggravated robbery conviction. The mittimus associates the credit for time served with Dixon's eight-year sentence to incarceration *Page 1179 by labeling both "Count 1." Count 1 is the attempted aggravated robbery conviction and sentence. The mittimus also indicates the length of the sentence for Count 1 and the days of presentence confinement for Count 1, but fails to list the length of the concurrent sentences. The mittimus states:
IT IS THE JUDGMENT/SENTENCE OF THIS COURT that the defendant be sentenced to THE CUSTODY OF THE EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CORRECTIONS Department of Corrections 8.00 YEARS COUNT 1 Credit for Time Served 174.00 DAYS COUNT 1 CONCURRENT WITH COUNT CASE NUMBER: 2001CR 2357 . . . CONCURRENT WITH COUNT CASE NUMBER: 2000CR 1686 . . .
Thus, the presentence confinement credit is tied to the aggravated robbery sentence and separate from the concurrent sentences.
Furthermore, the credit for time served is located directly after the attempted aggravated robbery sentence and before the concurring sentences. This placement indicates that the presentence confinement credit is applicable to Count 1, but not the concurrent sentences. My conclusion is that the plain language and structure of the mittimus direct the DOC to apply the 174 days of presentence confinement to the attempted aggravated robbery sentence.
The trial court's subsequent, post-sentence order supports this reading of the mittimus. After the DOC refused to credit Dixon's aggravated robbery sentence with 174 days of presentence confinement, he sought trial court intervention to require the DOC to comply with the mittimus. The trial court issued an order supporting Dixon's motion and request: "IN RESPONSE TO [DEFENDANT'S] MOTION FOR 174 [DAYS] CREDIT FOR TIME SERVED, SUBMITTED ON 10/12/05, COURT SENDS DOC TIME RELEASE [DEFENDANT] COPY OR ORIGINAL MITT, WHICH DID AWARD [DEFENDANT] 174 [DAYS][CREDIT]." (Emphasis added.)
This order can only be interpreted to mean that the trial court awarded Dixon 174 days presentence confinement credit to his eight-year sentence because of the context and wording contained therein. The trial court issued the order in the context of Dixon petitioning for intervention. The order responded to this motion by stating the mittimus "did award Defendant 174 days credit." Any other interpretation renders the trial court's order meaningless.
The DOC may not choose to ignore a final sentence by the trial court. Maj. op. at 1177; see Ostuni, 58 P.3d at 536 (Martinez, J. dissenting). Absent an appeal, when the trial court mandates how to credit presentence confinement, the DOC cannot later argue the order was illegal and refuse to apply it as written. Peoplev. Grangruth, 990 P.2d 697, 700-01 (Colo. 1999); Meredith v.Zavaras, 954 P.2d 597, 603 (Colo. 1998); Bullard v. Dep't ofCorr., 949 P.2d 999, 1002 (Colo. 1997). See Ostuni,58 P.3d at 535-36 (Martinez, J. dissenting). Here, the mittimus and trial court order mandate that 174 days of presentence confinement be credited to Dixon's attempted aggravated robbery sentence. The DOC cannot disregard this final order.
II. The majority goes beyond incorrectly interpreting the mittimus and establishes as a matter of law that a court's grant of presentence confinement credit has no independent meaning, but may be interpreted and applied as the DOC deems appropriate. Maj. op. at 1177-78. By indicating that the DOC is statutorily required to apply the law under section 18-1.3-405 and the trial court is only empowered to make the factual determination of the number of days a defendant was confined prior to sentencing, the majority opinion gives the DOC the unfettered authority to decide whether to give presentence confinement credit as ordered by the sentencing court. Maj. op. at 1177-78. Under the majority's holding, a defendant's only avenue for review of the decision of the DOC is an original proceeding.
The majority opinion is contrary to our precedent. We previously stated that the "power to decide the law and to impose sentences is necessarily a judicial function." Grangruth,990 P.2d at 701. Thus, the trial *Page 1180 court has the authority to determine a defendant's actual sentence by imposing a term of imprisonment and subtracting presentence confinement credit. The DOC, as an executive agency, is not empowered to review a final sentence and must apply the sentence as imposed by the trial court. See id. Even if the sentencing court's interpretation of section 18-1.3-405 is erroneous and a defendant's sentence is illegal, the DOC must appeal that sentence, not simply refuse to apply the trial court's order.
III. In this case, the DOC ignores the directive of the mittimus and the trial court's subsequent order. The majority opinion sanctions this failure by presuming the sentencing court did not intend to exceed its authority under section 18-1.3-405. The majority further holds that a trial court's determination of presentence confinement credit has no meaning until the DOC applies it to a particular defendant's sentence, which removes the authority to proscribe a defendant's actual sentence from the court and gives it to the DOC. For the reasons expressed above, I respectfully dissent.
I am authorized to state that Justice BENDER joins in this dissent.